MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS FOR INSUFFICIENT EVIDENCE AND FOR IMPAIRING THE INTEGRITY OF THE GRAND JURY
E. Susan Garsh, Justice of the Superior Court.
Shayanna Jenkins is charged with one count of perjury in violation of G.L.c. 268, § 1. She moves to dismiss the indictment on the grounds that the grand jury did not hear probable cause for that crime and the integrity of the proceeding was impaired. For the reasons discussed below, the motion to dismiss is denied .
On June 27, 2013, Jenkins appeared before the Bristol County Grand Jury (" Grand Jury") investigating the homicide of Odin Lloyd and asserted her Fifth Amendment right to remain silent. She was thereafter granted immunity from prosecution. Jenkins testified before the Grand Jury on August 13, 2013 and August 15, 2013. Her testimony for both days is set forth in approximately 217 pages of the grand jury transcript.
On September 26, 2013, Jenkins was charged with a single count of perjury. The indictment states that Jenkins:
On August 13, 2013, and/or August 15, 2013, at Fall River, in the County of Bristol aforesaid, being lawfully required to depose the truth in a judicial proceeding or in a proceeding in a course of justice, did willfully swear or affirm falsely in a matter material to the issue or point in question, or being required by law to take an oath or affirmation did willfully swear or affirm falsely in a manner relative to which such oath or affirmation was required, in violation of G.L.c. 268, section 1.
Jenkins then moved for a bill of particulars. After that motion was allowed, the Commonwealth filed a bill of particulars listing twenty-nine instances of allegedly perjurious statements. In response to a court order that the Commonwealth disclose all direct evidence of perjury in its possession, on July 31, 2014, the Commonwealth stated that it has direct evidence with respect to fourteen of the allegedly perjurious statements.
Duplicity is the charging of several separate offenses in a single count. Commonwealth v. Barbosa, 421 Mass. 547, 553 n.10, 658 N.E.2d 966 (1995). Jenkins argues that because the indictment charges a single count of perjury involving numerous separate acts, she may be convicted of a crime without having been indicted for that crime by a grand jury in violation of art. 12 of the Declaration of Rights. In Barbosa, the grand jury heard evidence that the defendant engaged in two entirely separate drug transactions; in each the defendant distributed cocaine to a different purchaser. Yet the grand jury returned only one count of distribution in the indictment. The indictment charged that the defendant did knowingly and intentionally distribute " a certain controlled substance." Id. at 548 n.2. At trial, the prosecution again presented evidence of the two separate transactions. The Court found that, " on its face, the indictment appears to refer to a single act of distribution of cocaine . . ." Id. at 551. The Court pointed out that it was not dealing with a continuing offense occurring at several times and places over a period of time. Id. Accordingly the Court reversed the conviction on the grounds that there was a very real possibility that the defendant was convicted of a crime for which he was not indicted by the grand jury. Id. at 554.
Generally, the Commonwealth is free to bring indictments in as many counts as it feels is appropriate in the circumstances, unless the form of the indictment infringes the substantial rights of the defendant. Commonwealth v. Murray, 401 Mass. 771, 774, 519 N.E.2d 1293 (1988) (successive takings of property actuated by a single, continuing criminal impulse or intent or pursuant to a general larcenous scheme may, but need not, be charged as one crime); Commonwealth v. Gurney, 13 Mass.App.Ct. 391, 399 n.9, 433 N.E.2d 471 (1982). Where there is a continuing criminal episode, the Commonwealth has discretion to charge multiple acts in a single indictment. See Commonwealth v. Crowder, 49 Mass.App.Ct. 720, 721-22, 732 N.E.2d 349 (2000) (proper to charge single indictment for rape based on four separate acts of penetration of the same victim); Commonwealth v. Gurney, 13 Mass.App.Ct. at 403, 405 (suggesting that perjury need not be treated as a continuing offense but may be so viewed). The Court in Gurney noted that it has been the practice in Federal courts to charge perjury committed in the same proceeding as a one-count indictment with each false declaration set forth in a particular specification. Id. at 405 n.13 (citations omitted). As long as the separate specifications set out different falsehoods, proof of any of the specifications is sufficient to support a verdict of guilty. Id. See also United States v. Fernandez, 389 Fed.Appx. 194, 199 (3d Cir. 2010) (citing United States v. Berardi, 629 F.2d 723, 729 (2d Cir. 1980), for the proposition that it is accepted practice to charge perjury before a grand jury committed in the course of the same appearance in a one-count indictment); United States v. Pagan-Santini, 451 F.3d 258, 266 & n.2 (1st Cir. 2006) (noting, in context of need for specific unanimity instruction, that government sometimes charges multiple perjuries in a single-count).
Jenkins has not demonstrated that the form of the indictment infringes upon her substantial rights. The falsehoods all relate to the testimony given by Jenkins before the same grand jury in connection with its inquiry into who might be responsible for Lloyd's death and/or be accessories after the fact. By viewing her testimony to the Grand Jury as a continuing course of perjurious conduct, the Commonwealth has avoided problems with multiplicity and limited Jenkins's criminal exposure. The bill of particulars gives Jenkins notice of the factual predicate underlying the Commonwealth's case and restricts the Commonwealth's proof at trial to the allegedly false statements specified therein. See Commonwealth v. Crawford, 429 Mass. 60, 69, 706 N.E.2d 289 (1999); Rogan v. Commonwealth, 415 Mass. 376, 378, 613 N.E.2d 920 (1993). At trial, the defendant will be entitled to a specific unanimity instruction indicating to the jury that they must be unanimous as to which specific statement constitutes the offense charged. See Commonwealth v. Shea, 467 Mass. 788, 798, 7 N.E.3d 1028 (2014) (specific ...